National Wildlife Federation v. Burford

Nos. 82-1094, -1166 (D.D.C. June 7, 1982)

In a suit to enjoin the sale of federal coal leases in the Powder River Coal Region of Montana and Wyoming, the court grants defendants' motion for a transfer of venue to the Montana district court. Venue is proper in Montana since three of the five plaintiffs are located in Montana, all of the planning for the coal lease sales was done in the government's field offices in Montana, and most of the relevant documents and potential witnesses are located there.

[Pleadings in this case are summarized at ELR PEND. LIT. 65748 — Ed.]

Counsel for Plaintiffs
Norman L. Dean Jr.
National Wildlife Federation
1424 16th St. NW, Washington DC 20036
(202) 797-6817

Reid P. Chambers
Sonosky, Chambers & Sachse
1050 31st St. NW, Washington DC 20007
(202) 342-9131

Counsel for Defendants
Michael W. Reed
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2778

[12 ELR 20762]

Richey, J.:

Before the Court are federal defendants' motions to transfer, plaintiffs' oppositions thereto, federal defendants' replies and the memoranda filed by the state of Wyoming, the defendant-intervenor.

These consolidated cases revolve around the state of Montana. Eight of the thirteen tracts of coal to be leased are in Montana.The plaintiff Northern Cheyenne Tribe resides in Montana, and they concede that venue is proper in Montana for their claims. Plaintiffs Northern Plains Resource Council and the Montana Wildlife Federation are also located in Montana. In all, three of the five plaintiffs are located in Montana, one is in Wyoming and one is an Washington, D.C. Most of the plaintiffs' counsel are in Montana or Wyoming or other Western states. Even the National Wildlife Federation, the sole Washington, D.C. plaintiff, has its lead counsel in Boulder, Colorado.

All of the planning and detailed work for these coal lease sales were done in the government's field offices in Montana and Wyoming. The only government activity done in Washington, D.C. which relates to the leases was the decision to conduct them. Most of the relevant documents are on Montana and Wyoming, as are most of the potential witnesses. At the heart of the case are fundamental questions directly affecting the lands and the peoples of these two Western states.

The only thing which might have kept this case here in the District of Columbia is Count V of the amended complaint in the National Wildlife Federation case ["NWF"], which now alleges a challenge to "regulations promulgated pursuant to" § 714 of the Surface Mining Control and Reclamation Act ["SMCRA"], 30 U.S.C. § 1304. That is the only allegation which has given the Court any hesitation in not immediately transferring the case to Montana, since timely challenges to "national rules or regulations" promulgated pursuant to the SMCRA are to be heard only in the District of Columbia. 30 U.S.C. § 1276(a).

After much thought and with the help of memoranda from both sides, the Court has concluded that the statement referred to in Count V is not even a regulation, much less a regulation promulgated pursuant to the SMCRA. It is a policy statement. The Department of the Interior specifically considered giving this policy statement the status of a regulation and declined to do so. 43 C.F.R. § 3427.5; 44 F.R. 42597, July 19, 1979.

Furthermore, even if this policy statement could be considered a quasi-regulation, it would be considered to have been promulgated pursuant to the Mineral Lands and Leasing Act, 30 U.S.C. passim, rather than the SMCRA. The very section of the SMCRA belatedly cited by plaintiffs provides that "coal deposits subject to this section shall be offered for lease pursuant to § 2(a) of the Mineral Lands Leasing Act of 1920, as amended [30 U.S.C. § 201(a)]." 30 U.S.C. § 1304(b). Section 2(a) of the Mineral Lands Leasing Act of 1920 governs coal leasing and tract division, inter alia.

In summary, this is a case only periphally involving Washington, D.C. Its primary focus is on the Western part of our country. Count V, which is only a very minor part of the complaint, could be tried with the other claims in Montana or Wyoming, since it does not involve a regulation, must less a regulation under the SMCRA.

The only real question is whether venue would be more proper in Montana or Wyoming. Plaintiffs strongly urge that Montana is the more appropriate forum of these two, while defendants say that either would be equally appropriate. More importantly, however, all of the other factors discussed above as well as the entire record herein leave no doubt that of the three forums at issue (D.C., Wyoming and Montana), Montana will be the most convenient for the parties and witnesses. The interest of justice will be best served by trying this case in the forum most familiar with the underlying facts.

For these reasons, the consolidated cases are transferred to the United States District Court for the District of Montana. An order in accordance with the foregoing shall be issued of even date herewith.

Order

Upon consideration of the federal defendants' motion to transfer, plaintiffs' opposition thereto, federal defendants' reply, the memoranda filed by the state of Wyoming and the entire record herein, it is, this 7th day of June, 1982,

ORDERED that the federal defendants' motion to transfer be, and the same hereby is, granted, and it is further

ORDERED that these consolidated cases be, and the same hereby are, transferred to the United States District Court for the District of Montana.